Whitman v. Forney

• Decision Date: 28 April 1943
• Docket Number: 8.
• Parties: WHITMAN et al., State Roads Commission, v. FORNEY et ux.
• Court: Maryland Court of Appeals

31 A.2d 630

181 Md. 652

WHITMAN et al., State Roads Commission, v. FORNEY et ux.

No. 8.

Court of Appeals of Maryland

April 28, 1943

Appeal from Circuit Court, Anne Arundel County; Ridgely P. Melvin Judge.

Suit by Ezra B. Whitman and others, constituting the State Roads Commission of Maryland, against William P. Forney and his wife to enjoin defendants from obstructing the flow of storm water from a state highway through a drain pipe and ditch across defendants' land, and to require defendants to restore the drain pipe to its original condition. From a decree of dismissal, plaintiffs appeal.

Reversed and remanded.

William J. McWilliams, of Annapolis (William C Walsh, Atty. Gen., and Edmond H. Johnson, Sp. Asst. Atty Gen., on the brief), for appellants.

Robert E. Kindred, of Glen Burnie, for appellees.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, and ADAMS, JJ.

MARBURY Judge.

The appellants, constituting the State Roads Commission, filed a bill of complaint in the Circuit Court for Anne Arundel County to enjoin the appellees from obstructing and continuing to obstruct the flow of storm water from Light Street Road, a state highway, which is part of the Baltimore-Annapolis Boulevard, through the terra cotta drain pipe and drainage ditch across the appellees' property and to require the appellees to restore to its original condition this terra cotta pipe under their dwelling house.

It appears from the evidence that Light Street Road was a County road prior to its becoming a part of the State Road System. When or how it was taken over by the State does not appear, but the testimony indicates that it has been a State Road for over thirty years. The tract of land on the west side of the road, of which the appellees' land is a part, formerly was owned by some people named Helmer, who occupied it as a farm for about fifty years. They eventually laid out the property in lots, and sold these lots to various persons. One of the last lots sold was that one belonging to the appellees. It was purchased by a man named Gross on April 14, 1924. When he bought the property there was a ditch running through it, which ran from a culvert under the road back more than half the depth of his lot, then turned abruptly to the right, and went through some adjacent property to a stream called 'Saw Mill Branch'. The land at the road slopes from east to west, and this ditch carried off the surface water. Gross built a small, three-room house on the property beside the ditch, and then put terra cotta pipes in the ditch from a point, almost, but not quite, at the entrance of the culvert to a point in the rear of his house. These pipes were bought by him. After they were placed in the ditch, the latter was filled up. Subsequently the house was extended over that part of the covered ditch, which when open, ran along side of it. It does not appear from the testimony whether or not the appellants were consulted about the installation of the pipe. Mr. Gross said his wife attended to it, and it was so long ago he did not know. It is undoubtedly true that the appellants knew about it and did not object to it. It apparently worked quite well, drawing off the surface water that came down the east side of the road, which ran under the culvert, through the pipe and the open ditch to the next property and then to the stream. Gross sold to Penland in 1930. Penland started to dig the cellar out to put in the furnace, and found the pipe running along one side. He covered up the pipe, and while he testified that whenever it rained his cellar was flooded with water, he did not know whether this came from the pipe or not. Penland rented to some people named Reeder, who lived in the house nearly three years. Mr. Reeder said, whenever it rained, the drain water from the sink and bath backed up in the cellar and conditions there were very bad. There was considerable odor and disinfectants had to be used. He cleaned out the open part of the ditch in the rear of the property three times a year.

The appellees bought the property from Penland in 1941. Mr. Forney looked over the property and went in the cellar, but did not know there were any broken pipes there before he purchased it. After he got in the property he started to dig in the cellar to put in a hot water furnace, and found a broken pipe out of which black, slimy water came, and a very bad odor. He then notified the State Roads Commission and they offered to repair the pipe. Subsequently and before this was done, Mr. Forney said he wanted the pipe line taken out of the cellar and put on the outside. The appellants said they would supply the labor and relocate the drain, if the appellees would supply the pipe, but the appellees did not agree. The appellees then got in touch with the County Health Officer, and he made several visits there, accompanied at one time by one of the County Commissioners. He finally told the appellees to block off the ditch where it entered their property. This they did, and as a result, water backed up along the road and over-ran other property. This suit was brought to restore conditions to those existing at the time the appellees blocked the pipe line. The court below declined to grant the injunction requested and dismissed the bill. From that action, the appeal comes here.

Two schools of thought have existed in the various states throughout this country on the question whether the owner of lower land may prevent the natural flow of surface water thereon from the land lying above it. These two conflicting schools are thus described in Tiffany on Real Property, Third Edition, Volume 3 Section 743: 'In some states the rule of the civil law has been adopted, according to which land on which surface water naturally flows from another tenement is regarded as subject to a servitude of receiving such flow and consequently the owner has no right, by any erection or improvement, to prevent the escape thereon of water from the higher land. In other jurisdictions, what is known as the 'common-law rule' obtains, according to which the ordinary right of an owner of land to make any use whatever of his land, either by erections thereon or changes in the surface, is regarded as independent of the effect which such erections or changes may have in causing water which naturally flows off on his land to collect or flow on other land.' The states in which the civil law rule has been adopted as stated by Tiffany are: Alabama, California, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, North Carolina, Ohio, Pennsylvania, South Dakota, Tennessee, and Texas. The jurisdictions listed as adopting the common law rule are: Arizona, Arkansas, Connecticut, District of Columbia, Indiana, Kansas, Maine, Massachusetts, Mississippi, Missouri, Nebraska,...